This essay is a shortened and simplified version of Chanaka Amaratunga’s summary of the conclusions of seminars on political structures apart from Parliament, conducted between 1987 and 1988 by the Council for Liberal Democracy. It follows on the companion conclusions on Parliament, which appear together with this essay.

The full text is in ‘Ideas for Constitutional Reform’, International Book House, 1 Kumaran Ratnam Road, Colombo 2, available too at 151A Dharmapala Mawata, Colombo 7.

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Chanaka Amaratunga (1958 - 1996)

Though it was generally felt the executive presidency should be abolished, that system had some support. The impression of an authoritarian presidency was created not because of the executive presidency but because it functions in a context of a devalued Parliament, with the President supported by a two thirds majority extended without an election. If measures agreed previously for the strengthening of parliament were implemented, the executive presidency would not be unacceptable.

It was further argued that the executive presidency enhanced the political importance of ethnic minorities: a president who needed to be elected by all Sri Lankans would need to maximize his vote throughout the country. This argument was countered with the assertion that, under an executive presidency, the support of ethnic or indeed political minorities may be sought to obtain office, after which they would have no political leverage. Conversely, in a Parliamentary system based on a fair system of proportional representation, a government’s survival may depend on the support of small and ethnic oriented parties and would therefore lead to genuine participation by them in government.

The importance of political accountability, of the need for the political leadership of the country to be subject to debate, criticism and diversity of views, was stressed as a reason for a return to parliamentary and cabinet government.

It was argued that the executive presidency had helped create a political atmosphere which had ‘raised the stakes of political defeat’ to such an extent that it encouraged resistance to democratic change. So much power and privilege was invested in the holding of political office that its loss entailed destruction as well as humiliation, so politicians tried to avoid electoral defeat at all costs. But it was recognized that this and other forms of authoritarianism were possible even under a parliamentary system if too much power was concentrated in Parliament as in the Constitution of 1972 or through the continual use of emergency power.

With regard to devolution, there was examination of what kind of overall system of distribution of power was best for Sri Lanka. Three possibilities were considered:

  1. The unitary state
  2. Devolution
  3. Federalism

There was focus on the existence of prejudices amongst all. It was important in decision making to note that each of us brought our own prejudices in relation to historical experience, to perceptions of economic discrimination, to perception of cultural factors and of what other people’s problem are.

Discussion of the existing system of provincial councils indicated that it had many defects. It was not that provincial councils per se were bad, but that the system as introduced has many shortcomings.

In looking for alternatives attention was paid not only to the constitutional structure but to the background in which that structure exists. An important element was the political party system. Political parties are vital to the working of the constitution. Genuine national unity, whether in the context of a federal constitution or of extensive devolution under a unitary constitution, could not be achieved until political parties, at least of the mainstream, became national parties, whose appeal crossed ethnic and religious lines. The absence of national political parties contributed to the decline of liberal democracy. However neither this nor the existence of ethnic parties is necessarily an obstacle to the working of a liberal democratic system. It is possible people may find traditional loyalties a convenient bond, which is why ethnic parties attract some support.

In such circumstances, the interest of liberal democracy may best be served by the development of links between ethnic parties to develop coalitions of ethnic groups with ideological affinities. Non-governmental organizations outside the constitutional structure, such as trade unions, professional groups, religious bodies and so on, could also help strengthen the constitutional structure and links between devolved units and the center.

While there was much interest in constitutional details, some noted that the working of the constitution and goodwill were as important as the document itself. One of the functions of a constitution is to develop goodwill, so a widely respected constitution with entrenched rights is of considerable importance.

There were some areas which the seminar left open. We did not look at how many devolved units there should be and their composition.  We did not investigate how the constitutional structure should be buttressed by different layers of local government. There could be many layers of government, though this would require careful consideration of the means by which the constituent units of the state would be able to achieve financial viability.

There were several arguments for a unitary state. In a unitary state where there is justice, equity, and the protection of fundamental individual rights, and where there is a genuine sharing of power, a real solution to the Sri Lankan problem may be achieved. A government responsive to minority concerns could be established via a unitary state. Several disagreed and said Sri Lanka needed some element of devolution, perhaps even the adoption of a federal system.

The crux of the question related to the purpose of devolution. Some argued devolution and federalism should be adopted to resolve the ethnic conflict but others, while promoting devolution for practical reasons, were not convinced the federal system would itself solve the problem. Much depended on how the system was constructed, how provinces would be demarcated and so on. It was claimed that federalism was not primarily to promote ethnic consciousness, which it could also help overcome, but rather to promote efficiency and balance.

The discussion favoured at least a system of extensive devolution but it was observed that a federal state or any other form of constitution can only be achieved through political acceptability, and it was uncertain as to whether a federal state would be politically acceptable in Sri Lanka. Development of political will to solve the problems in the country at large was a greater urgency.

With regard to the judiciary, there was consensus on a number of points, especially that it needed strengthening. The independence of the judiciary in recent years had undergone a number of assaults. Constraints upon the judiciary had to be overcome to ensure individual freedom and a more liberal democratic political order. The basic sentiment of most participants was summed up by the claim of the American Justice Brandeis:

The founder’s purpose was not to avoid friction but, by means of the inevitable friction incident to the distribution of the government powers among three different departments, to save the people from autocracy

If people were to be preserved from autocracy, and a liberal democratic system promoted, there must be a greater compartmentalization of constitutional functions. There was no real defence of the theory of the absolutely sovereign parliament, but rather almost unanimous agreement that the doctrine of the separation of powers should be introduced.

Along with an independent judiciary there should be depoliticisation of the administration. The tradition of an independent and professional civil service should be restored and the Public Service Commission regain the authority it enjoyed under the Soulbury Constitution.

There was widespread agreement about removing an illogical remnant that survives from the 1972 constitution, the restriction that permits the judiciary to pronounce only upon the validity of legislation prior to its being enacted.

Inclusion in the constitution of comprehensive judicial review of legislation was proposed, along with a strong Bill of Rights and enumeration of the rights of individuals in the constitution, while making the constitution clearly the supreme law. The corollary of such an approach was acceptance of the doctrine that the Supreme Court is the final arbiter of what the constitution is, so legislation that in its opinion does not conform to the constitution could be struck down.

The issue arose as to what kind of political order would have resulted in this country if we had an activist judiciary and comprehensive judicial review of legislation. The notion that underlay governmental action for the last thirty years and more was that governments should be able to do whatever they want to do. The overwhelming sense was that this was wrong. It was accepted that there should be limitations on the absolute power of the President to appoint judges.

A right to freedom of information should be included in the Bill of Rights. Freedom of expression, of speech and of publication, should strongly be guaranteed, with legislation that restricted media freedom such as the Press Council Act impossible to enact. Media organizations vested in the state should be placed under impartial bodies with powers and composition set out by law.

The overwhelming consensus was that governmental interference in the judiciary and in the media was currently excessive and constitutional measures were needed to strengthen the independence of both these institutions whose integrity, freedom and strength are vital to the survival of a liberal democracy.

At the end of the whole seminar series, it seemed we had a basic framework for an ideal constitution for a liberal democracy. A constitution should certainly have these elements:

  1. A representative Parliament consisting of two chambers, members of  which should be accountable to the public
  2. an electoral system, which ensures  fair representation
  3. an executive responsible to the legislature in a real sense, not simply in the nominal sense of the present Constitution
  4. a strong and active judiciary

All these should be buttressed by a number of active individuals and associations and strengthened by a free media. They should be supported by a strong and comprehensive Bill of Rights, which must be part of the Constitution – though, as one of the non-Liberal participants noted, perhaps in the end the successful working of such a constitution relies on its being supported by a large and articulate community of Liberals.

There are certain elements that were not really considered, but a coherent framework of a true liberal democracy emerged, providing a more than adequate blueprint for a better Constitution for Sri Lanka.